The California Labor Commissioner’s Office recently issued new guidance regarding the application and administration of the state’s paid sick leave law.  The new guidance addresses the interplay between the law and grandfathered employer part time off (“PTO”) plans, as well as the interaction between employers’ disciplinary policies on employees’ use of paid sick leave.

Grandfathered PTO Plans

As for PTO plans that employers had in place at the time the law went into effect on January 1, 2015, the Labor Commissioner reinforced the statutory language (found at Cal. Lab. Code § 246(f)).  Specifically, the Commissioner confirmed that if, at the time the law became effective, an employer already had an existing PTO plan that made an amount of paid leave available that could be used for as many or more days and under the same or more favorable conditions than those specified in the law, that employer may continue to use the PTO plan and does not have to provide additional paid sick days in order to satisfy the law’s requirements.

As for grandfathered PTO plans, the Commissioner also explained that the paid sick leave law addresses only the rate of pay that must be paid for time taken off as paid sick leave (Cal. Lab. Code § 246(l)).  Therefore, if an employer is providing paid sick days through a grandfathered PTO plan, the paid sick leave law has no impact on the rate of pay the employer must pay for days that an employee takes off under the plan for purposes other than paid sick days, such as vacations or personal holidays.

Discipline for Unscheduled Absences

Finally, the Commissioner addressed the issue of discipline for an employee’s unscheduled absence from work as it relates to the paid sick leave law.  Specifically, the Commissioner clarified that the law does not protect all time off taken by an employee for illness or related purposes.  Rather, it prohibits disciplinary action only with respect to an employee’s use of accrued and available paid sick leave under the statute.  Therefore, an employer may not impose discipline for an unscheduled absence that occurs for purposes specified under the paid sick leave law (see Cal. Lab. Code § 246(l)) and for which the employee has available and uses accrued paid sick leave time.  The employer, may, however, impose discipline for unscheduled absences that occur for reasons other than those enumerated in the law, or for which the employee does not have or does not use accrued and available paid sick leave time.

Employers should note that local ordinances and state and federal disability and leave laws may further impact the employer’s obligations regarding the above items.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.